Terms of Trade
Definitions |
Price | Liability |
Claims | Limitation of Actions |
General Liens | Force Majeure
Storage and Disposal of Unclaimed or Rejected Goods |
Guarantee | Indemnity |
Termination
Severability | Confidentiality |
Subcontracting | Carriage |
Relationship of the Parties |
General
1. DEFINITIONS
“We”, “our” and “us” refers to Cool Distribution Limited and its subcontractors, trading divisions, employees and agents.
“You” and “your” refers to the Freight payer, Customer, Sender and Receiver and to their employees and agents and to all others with an interest in the goods that are being transported under this agreement.
“Goods” refers to refrigerated merchandise and any other products that Cool Distribution Limited may accept for carriage from time to time.
“Unit” refers to goods contained in a package as accepted for carriage by Cool Distribution Limited or any of it’s subcontractors, trading divisions, employees or agents.
“Services” refers to the refrigerated carriage and distribution services to be provided by us as outlined in this Agreement.
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2. PRICE
(a) The current rates of charge are as outlined in Schedule 1.
(b) In this agreement, unless otherwise specified, the rate of charge will apply to:
(i) Cartons up to a maximum of 20 kilograms in weight.
(ii) Pallets being delivered complete to a single destination.
(iii) All packaging, pallets and other such items in which the goods are packed or stored are deemed to form part of the goods for assessing the weight and measurement of the goods and calculating the charges payable by you.
(c) We reserve the right to reweigh or measure the product should we deem it necessary to do so.
(d) The rates do not include Goods and Service Tax (GST). GST is payable on the services provided and it will be charged to and be payable by you in addition to the rates specified.
(e) Price variation may occur if any of the following changes to the operational structure are incurred.
(i) An increase in costs associated to the services provided.
(ii) Increases in volume of product to be transported and handled.
(iii) Any outside influences that may affect our ability to provide the service at the quoted rates.
(f) Any variation in rates will be subject to us giving the concerned party one months notice in writing of our intention to renegotiate the rates.
(g) Unless otherwise specified in writing, the rates shall remain valid for a period of one year and shall not be reduced.
(h) Payment is to be made upon invoice and is due without deduction or set off. Disputes in regard to the amount of invoice may be referred to arbitration if mutual agreement cannot be reached.
(i) If for any reason there is a default in payment we reserve the right to suspend carriage of your goods and/or retain your goods until payment is made in full.
(j) Any payments due by you and in arrears will bear interest at 3% per month calculated from due date until payment. You will be liable to pay all legal and other costs incurred by us in collecting or attempting to collect any amounts outstanding.
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3. LIABILITY
(a) We shall be responsible for the goods from the time that the goods are
accepted for carriage in accordance with this agreement until the time -
(i) when the goods are duly tendered by us to the next actual carrier of carriage; or
(ii) when the goods are tendered to the consignee in the manner expressed or implied in this agreement; or
(iii) when any amount by way of freight is due and payable to or on behalf of the you at any time before, or at the time at which, the goods are to be tendered to the consignee under this agreement and that amount has not been paid in full, gives notice to any person liable to pay the amount or the balance of the amount that he is so capable; or
(iv) when the consignees whereabouts are unknown to us, our responsibility ends when we have taken reasonable steps to find the consignee.
(v) In the case where the goods are to be collected by the consignee,
- when the goods are collected by the consignee; or
- On the expiry of the 5th day (excluding any day on which our premises are not open for the collection of goods) after the date in which we have notified the consignee that the goods are available for collection.
(b) We shall, subject to the terms of this agreement, be liable for the loss or damage to any goods occurring while we are responsible for the goods in accordance with subsection 3(a) of this agreement whether or not the loss or damage is caused wholly or partly by us.
(c) We are not liable under subsection 3(b) of this agreement if we prove that the loss or damage occurred otherwise than while we were separately responsible for the goods in accordance with subsection 3(a) of this agreement.
(d) Notwithstanding any of the provisions of the Carriage of Goods Act 1979 and its amendments, where any goods are sold or destroyed or otherwise disposed of under and in accordance with any of sections 23 to 26 of the Act, we shall not be under any liability (whether under the Carriage of Goods Act 1979 or otherwise) in respect of that sale, destruction, or other disposition; but that sale, destruction, or other disposition shall not affect any liability for any loss or damage that had already occurred in respect of the goods before the sale, destruction, or other disposition.
(e) You shall be liable for the stability of any pallets, packages, containers and other pre-packed loads prepared by you to ensure the stability, security and to minimise damage of the goods during transit.
(f) It is your responsibility to ensure that any goods that are to be delivered by us on your behalf are to be received by the consignee. If for any reason the consignee is unavailable to accept the delivery it is your responsibility to ensure that other delivery arrangements are made, prior to delivery, at cost to you.
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4. CLAIMS
(a) Subject to the provisions of the Carriage of Goods Act 1979, and except in the case of fraud by us, no action may be brought against us for damage to or partial loss of goods occurring while we are responsible for the goods under subsection 3(a) of this agreement unless written notice giving reasonable particulars of the alleged damage or partial loss is given within 30 days after the date on which, in accordance with subsection 3(a) of this agreement, our responsibility for the goods ceased.
(b) No notice is required if it is apparent from all the circumstances of the case that we are or ought to be aware of the damage or partial loss.
(c) For the purpose of insurance, in relation to goods that are unitised for the purposes of carriage, each unit shall be deemed to be goods contained in a package and shall be insured for the amount in each case to the sum of $1,500.00 for each unit.
(d) This agreement is an agreement for carriage “at limited carrier’s risk”, as defined in section 8 of the Carriage of Goods Act 1979.
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5. LIMITATION OF ACTIONS
Except in the case of fraud, no action may be brought against us for the loss of any goods occurring while we are responsible for them under the Carriage of Goods Act 1979 after the expiration of a period of twelve (12) months from the date on which the carriage should have been completed in accordance with this agreement.
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6. GENERAL LIENS
We are entitled to sue for recovery of freight due in respect of the carriage of your goods and all expenses and charges that we are entitled to recover from you in respect of any goods that we have exercised a lien in accordance with Section 23 of the Carriage of Goods Act 1979.
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7. FORCE MAJEURE
Neither party shall be in breach of this Agreement as a consequence of a failure to perform or carry out an obligation imposed under this Agreement if such failure is caused by force majeure. For the purposes of this Agreement (but not by the way of limitation) force majeure shall mean and include any cause or delay beyond the reasonable control of that party unless conclusive evidence to the contrary is provided and shall include war, acts of enemies of the Government, fire, explosion, sabotage, strikes, lock-outs, unavailability of materials or vehicles, breakdown, storm, flood, earthquake, subsidence, mandatory compliance with any direction, request or order of any person having or appearing to have authority, whether for defence or other governmental or national purpose, or any requisition for materials of services apparently or stated to be for the purpose of defence, provided that the party claiming force majeure shall:
(a) Give the other party immediate notice of the occurrence of that force majeure event; and
(b) Use all reasonable endeavours to remedy the effect of that force majeure event.
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8. STORAGE AND DISPOSAL OF UNCLAIMED OR REJECTED GOODS.
(a) Where, under this Agreement any goods are to be collected by us as instructed by you or in the case of the consignee refusing to accept the goods or if the consignee cannot be found, we are entitled to store the goods at a suitable premises.
(b) In respect of any goods held under this section, we are entitled to exercise our rights under Section 24 of the Carriage of Goods Act 1979.
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9. GUARANTEE
(a) We guarantee that the service will be carried out with reasonable skill and care and will be subject to all applicable laws, regulations, conditions and any information and directions that may appear in this agreement.
(b) We guarantee that we will complete the service within the time period specified in Schedule 2 of this Agreement.
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10. INDEMNITY
If there is any loss caused by either party to this Agreement by reason of a breach, the breaching party shall indemnify the other party in respect of that loss.
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11. TERMINATION
(a) Without prejudice to any other remedy that either party may have against the other, either party may terminate this Agreement immediately by a notice in writing given to the other party if such other party is in breach of this Agreement and does not remedy the breach within thirty (30) days of a notice in writing specifying the breach and requiring its remedy.
(b) Termination may occur forthwith without notice if there is an act of bankruptcy by either party, a receiver appointed over the assets or a substantial portion of the assets, or a resolution is passed or an order is made for the liquidation or winding up or dissolution in accordance with the law or incorporation, or if upon reasonable grounds either party considers that the other party is unable to pay its debts as they fall due.
(c) Upon termination of this Agreement for any reasons whatsoever, all sums owing by you to us shall become immediately due and payable.
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12. SEVERABILITY
If for any reason any particular clause in this Agreement may become ineffective the other clauses remain valid and the whole Agreement is not to be deemed as struck down.
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13. CONFIDENTIALITY
(a) If in the performance of this Agreement, a party becomes aware of secret and confidential information belonging to the other party (including information which may not be relevant to the subject matter of this Agreement) such party shall keep secret and confidential and not disclose the same to any third party whosoever or whatsoever (save and except those or its officers and employees who must necessarily know the same for the purpose of carrying out their duties). Each party shall ensure that those of its officers and employees to whom secret and confidential information belonging to the other party, may be disclosed or who may become aware of such information, are instructed that they are dealing with secret and confidential information belonging to the other party and that it is to be treated as such.
(b) Upon the expiry or earlier termination of this Agreement, each party shall, as soon as possible, return to the other party all copies of all information relating to the business of the other party which has been provided to that party by the other party (in whatever medium or form it may be in), if requested to do so.
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14. SUBCONTRACTING
We reserve the right to subcontract the performance of the services to our agents and subcontractors in accordance with the same standards herein with the prior written consent of you, which will not be unreasonably withheld. We will be responsible for the acts and omissions of any sub-contractor, as well as for ensuring that the sub-contractor performs the services in accordance with and to the standard required under this Agreement as if we had performed the relevant service ourselves. The sub-contracting of any of our benefits or obligations under this Agreement in whole or in part shall not relieve us in any way whatsoever from our responsibility for due performance of this Agreement in accordance with its terms and conditions.
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15. CARRIAGE
(a) We reserve the right to retain the preferred right to provide the services throughout the North Island of New Zealand.
(b) We shall provide refrigerated transport vehicles that are suitable in all respects for use in carrying out the services. In any case where you require a particular type of vehicle for the purpose of carrying goods which are different from that usually used for that purpose by us, you may request us to provide such a vehicle. We will use our reasonable endeavours to provide such a vehicle, together with a trained driver, in accordance with your instructions, but we do not warrant that we will be able to provide such a vehicle in any particular instance.
(c) In carrying out the services, we shall:
(i) Comply with site operation and safety policies/procedures as required by you;
(ii) Perform the services subject to the terms and conditions written or implied in this Agreement;
(iii) Perform the services efficiently with due care, diligence and skill, and to the best of our knowledge and expertise, and in accordance with the best industry practices.
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16. RELATIONSHIP OF THE PARTIES
The parties to this Agreement agree that nothing in this Agreement or in the performance thereof shall be read or construed as creating any relationship between the parties other than the contractual relationship established by this Agreement an in particular nothing in this Agreement shall be deemed to constitute either party the partner, agent or representative of the other party and neither party shall have the authority to act for or to incur any obligation on behalf of the other party other than as may be specifically provided by this Agreement.
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17. GENERAL
(a) The parties shall do all things necessary or reasonably requested by either party to carry out and give effect to the intent and purpose of this Agreement.
(b) This Agreement constitutes the entire agreement between the parties with respect to the matter dealt with in this Agreement and any previous agreements, correspondence or representations in relation to such matters shall cease to have any further force or effect.
(c) No modification, variation or amendment of the terms and conditions of this Agreement shall be of any force or effect unless such modification, variation or amendment is in writing and has been signed by all parties.
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